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Why Are West Virginia Lawmakers Failing to Protect Seniors?

July 6, 2015July 6, 2015

Nursing home abuse and neglect is a serious issue in West Virginia. However, based on what occurred during the latest legislative session, our lawmakers are doing the opposite of what one would expect. Instead of doing more to protect nursing home residents and their families, bills were enacted or considered during the 2015 session that actually protect nursing homes.

In particular, three bills deserve close scrutiny:

Senate Bill No. 6 (SB 6) - A major reform to the Medical Professional Liability Act (MPLA) that limits the amount of non-economic damages that can be recovered in a nursing home abuse or neglect lawsuit. Governor Earl Ray Tomblin signed the bill in March.

Senate Bill No. 421 (SB 421) - A measure that caps punitive damages in civil actions, including those taken against nursing homes in West Virginia. Gov. Tomblin signed this bill in March as well.

Senate Bill No. 493 (SB 493) - A bill that would allow a person with medical power of attorney to waive a nursing home resident's right to a jury trial and agree to submit claims to arbitration. This bill, fortunately, stalled in a Senate committee.

WVAJ Points to Disturbing Facts about West Virginia Nursing Homes

As the WVAJ pointed out in its statement, which was reported on by The Charleston Daily Mail, the patient advocacy organization, Families for Better Care, gave West Virginia a "D" grade in its most recent Nursing Home Report Card.

According to Families for Better Care, between 2013 and 2014, the state fell nine places in its national rankings, from No. 27 to No. 36, and it dropped from a "C" grade.

The state's decline was due, in no small part, to the fact that West Virginia nursing homes have "paltry caregiver hours" and a high number of homes with "deficiencies," or violations of federal standards, the organization found.

As the WVAJ notes, the number of West Virginia long-term care facilities with "severe deficiencies" actually more than doubled between 2011 and 2014, going from 53 to 111.

Bills Limit Nursing Home Residents' Rights

Given the state of West Virginia's nursing home industry, as outlined above, it is shocking to see what our lawmakers worked on this past session.

As a writer in this National Law Review article notes, SB 6 expands the definition of "health care provider" to include a nursing home's staff members, administrators, certified nursing assistants and its corporate owners.

By expanding this definition, the law brings personal injury and wrongful death lawsuits against nursing homes within the caps that are placed on non-economic damages in medical negligence cases by the MPLA.

Non-economic damages include compensation for pain and suffering or loss of consortium. The MPLA limits those damages to $250,000. If a case involves a wrongful death or injury that causes a permanent disability, the cap is $500,000.

SB 421 limits damages as well. It caps punitive damages in civil lawsuits to four times the amount of compensatory damages or $500,000, whichever is greater.

Punitive damages are not meant to compensate a victim but rather to punish and deter a defendant for especially egregious misconduct. Those damages can be useful when it comes to improving the quality of care in our nursing homes.

Thankfully, SB 493 did not make it out of a committee. The bill essentially would have allowed someone with the power to make medical decisions for an incapacitated person (medical power of attorney) to also make legal decisions for them by waiving their right to a trial by jury and submitting a case to arbitration.

Arbitration is different than taking a case to court before a judge and jury. In arbitration, a panel decides the outcome. In many cases, the individuals on those panels work on a routine basis with the nursing homes (giving them little motivation to rule against them). Additionally, arbitration can feature high fees that ultimately deter people from pursuing a case.

It will be important to track whether this bill gets revived in the future.

Concerned about Nursing Home Abuse or Neglect? Stand Up for Your Rights

While the past legislative session provided disappointing news, you should not let it discourage you from seeking justice if you or a loved one is the victim of nursing home abuse or neglect. You can and should stand up for your rights and pursue the compensation you rightfully deserve.